I know that convicted felon's are not allowed to buy guns but what if they already own them before they are convicted? Will the police take them from the home or do you turn them in somewhere? And just for the record I'm not a criminal. I was discussing this topic with a few others at work today and nobody knew the answer. Thanks in advance!
convicted felon and guns
- Thread starter hot sauce
- Start date
All felons who possess firearms are to turn them in to me as soon as possible.
Okay, not really.
I don't know the mechanism but they are supposed to reliquish possession of all their firearms and it is illegal for them to even physically hold/possess or shoot a firearm. I have heard that some have given possession to a family members - even a spouse - so long as they do not have physical access to them - i.e. the spouse has them in a gun safe and the felon does not have the combination or the key.
Laws may also vary by state. So, the only thing I'm truly certain of is that if you are a felon you cannot possess a firearm.
Okay, that is as clear as mud.
Okay, not really.
I don't know the mechanism but they are supposed to reliquish possession of all their firearms and it is illegal for them to even physically hold/possess or shoot a firearm. I have heard that some have given possession to a family members - even a spouse - so long as they do not have physical access to them - i.e. the spouse has them in a gun safe and the felon does not have the combination or the key.
Laws may also vary by state. So, the only thing I'm truly certain of is that if you are a felon you cannot possess a firearm.
Okay, that is as clear as mud.
Black powder guns are not firearms as defined by some versions of law. It all depends on your location. Texas does not define black powder non cartridge guns as frearms. Even though they may not be a "firearm" they can still be a prohibited weapon. Again, not under Texas law but other locations may. By Texas law, five years after a person is released from confinement and/or supervision they may posess a firearm again inside their home only.
Also, according to federal law, if a felony is pardoned/expunged/set aside by an authority having jurisdiction over the court which convicted and it does not specifically exclude or restrict firearms ownership, it is no longer a disqualifying offense. If it is a state conviction, you are OK, however, if it is a fed.gov conviction you are hosed as the ATF is defunded from processing relief of disabilities applicaitons and presidential pardons are not likely since Billary was no longer handing them out like expensive toilet paper.
Wyoming is currently in a fight with ATF over their state provision to pardon misdomeaner domestic violence convictions specifically for firearms. ATF says it doesn't count because the conviction is still on record in case the person is convicted again and Wyoming says that fed law specifically delegates the authority to regulate disability to the court/jurisdiction that originally convicted. While this is not exactly the same chapter as felony disability, the fundamental question is the same, "Can states remove firearms disability resulting from state convicitons?" The ATF takes the position that Lautenberg does not have the same removal of disabilty as a felony conviction and that Wyomings releif does not apply since it does not totally remove the conviction. Even though the law specifically states it is for the purpose of restoring firearms rights.
I am not your lawyer, I am not A lawyer and I do not play one on TV. The statutes are available is you want to look for them. The Texas link follows. just click not cut and paste.
http://www.capitol.state.tx.us/cgi-...=124063&CQ_CUR_DOCUMENT=4&CQ_TLO_DOC_TEXT=YES
Also, according to federal law, if a felony is pardoned/expunged/set aside by an authority having jurisdiction over the court which convicted and it does not specifically exclude or restrict firearms ownership, it is no longer a disqualifying offense. If it is a state conviction, you are OK, however, if it is a fed.gov conviction you are hosed as the ATF is defunded from processing relief of disabilities applicaitons and presidential pardons are not likely since Billary was no longer handing them out like expensive toilet paper.
Wyoming is currently in a fight with ATF over their state provision to pardon misdomeaner domestic violence convictions specifically for firearms. ATF says it doesn't count because the conviction is still on record in case the person is convicted again and Wyoming says that fed law specifically delegates the authority to regulate disability to the court/jurisdiction that originally convicted. While this is not exactly the same chapter as felony disability, the fundamental question is the same, "Can states remove firearms disability resulting from state convicitons?" The ATF takes the position that Lautenberg does not have the same removal of disabilty as a felony conviction and that Wyomings releif does not apply since it does not totally remove the conviction. Even though the law specifically states it is for the purpose of restoring firearms rights.
I am not your lawyer, I am not A lawyer and I do not play one on TV. The statutes are available is you want to look for them. The Texas link follows. just click not cut and paste.
http://www.capitol.state.tx.us/cgi-...=124063&CQ_CUR_DOCUMENT=4&CQ_TLO_DOC_TEXT=YES
Sorry Wrong;
See definitions;
27CFR478.32(a)
(a) No person may ship or transport any firearm or ammunition in
interstate or foreign commerce, or receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce,
or possess any firearm or ammunition in or affecting commerce, who:
blah blah blan including convicted of crime punishable > 1 year.
15USC18
Firearm. Any weapon, including a starter gun, which will or is
designed to or may readily be converted to expel a projectile by the
action of an explosive; the frame or receiver of any such weapon; any
firearm muffler or firearm silencer; or any destructive device; but the
term shall not include an antique firearm.
27CFR478.11
Antique firearm. (a) Any firearm (including any firearm with a
matchlock, flintlock, percussion cap, or similar type of ignition
system) manufactured in or before 1898; and (b) any replica of any
firearm described in paragraph (a) of this definition if such replica
(1) is not designed or redesigned for using rimfire or conventional
centerfire fixed ammunition, or (2) uses rimfire or conventional
centerfire fixed ammunition which is no longer manufactured in the
United States and which is not readily available in the ordinary
channels of commercial trade.
It's all there in federal law.
Sorry, but you're not correct. You're looking at the definitions as applying to shipping guns. That's completely different than the definition used when for felony possession. You need to go to 18 USC. Felons cannot possess BP nor antique firearms.
Call your USA and they'll be happy to explain it to you.
Call your USA and they'll be happy to explain it to you.
Sorry, it is the same definitions for possesion, delivery sale etc.;
18USC921
(3) The term "firearm" means (A) any weapon (including a starter
gun) which will or is designed to or may readily be converted to
expel a projectile by the action of an explosive; (B) the frame or
receiver of any such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device. Such term does not include
an antique firearm.
(16) The term "antique firearm" means -
(A) any firearm (including any firearm with a matchlock
flintlock, percussion cap, or similar type of ignition system)
manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if
such replica -
(i) is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition
which is no longer manufactured in the United States and which
is not readily available in the ordinary channels of commercial
trade; of
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle
loading pistol, which is designed to use black powder, or a black
powder substitute, and which cannot use fixed ammunition. For
purposes of this subparagraph, the term "antique firearm" shall
not include any weapon which incorporates a firearm frame or
receiver, any firearm which is converted into a muzzle loading
weapon, or any muzzle loading weapon which can be readily
converted to fire fixed ammunition by replacing the barrel, bolt,
breechblock, or any combination thereof.
And
18USC922
(g) It shall be unlawful for any person -
(1) who has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled
substance (as defined in section 102 of the Controlled Substances
BLAH BLAH BLAH provisions snipped…
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
Wander on over to;
http://uscode.house.gov
search on 18USC921 for definitions and 18USC922 for crimes and criminal procedure.
That's the law as it is on the books and it is pretty clear. That is why state laws often cover black powder guns as dangerous or other weapons and why black powder guns are not subject to NICS or any of the other federal restrictions on shipping, sale or possesion. There are no additional provisions for antique firearms prohibition.
I would love for anyone on the board to provide a cite to a single upheld federal conviction for felon in possesion (In violation of 18USC922(g)) based soley on the actor possesing a BP antique or replica gun.
18USC921
(3) The term "firearm" means (A) any weapon (including a starter
gun) which will or is designed to or may readily be converted to
expel a projectile by the action of an explosive; (B) the frame or
receiver of any such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device. Such term does not include
an antique firearm.
(16) The term "antique firearm" means -
(A) any firearm (including any firearm with a matchlock
flintlock, percussion cap, or similar type of ignition system)
manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if
such replica -
(i) is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition
which is no longer manufactured in the United States and which
is not readily available in the ordinary channels of commercial
trade; of
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle
loading pistol, which is designed to use black powder, or a black
powder substitute, and which cannot use fixed ammunition. For
purposes of this subparagraph, the term "antique firearm" shall
not include any weapon which incorporates a firearm frame or
receiver, any firearm which is converted into a muzzle loading
weapon, or any muzzle loading weapon which can be readily
converted to fire fixed ammunition by replacing the barrel, bolt,
breechblock, or any combination thereof.
And
18USC922
(g) It shall be unlawful for any person -
(1) who has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled
substance (as defined in section 102 of the Controlled Substances
BLAH BLAH BLAH provisions snipped…
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
Wander on over to;
http://uscode.house.gov
search on 18USC921 for definitions and 18USC922 for crimes and criminal procedure.
That's the law as it is on the books and it is pretty clear. That is why state laws often cover black powder guns as dangerous or other weapons and why black powder guns are not subject to NICS or any of the other federal restrictions on shipping, sale or possesion. There are no additional provisions for antique firearms prohibition.
I would love for anyone on the board to provide a cite to a single upheld federal conviction for felon in possesion (In violation of 18USC922(g)) based soley on the actor possesing a BP antique or replica gun.
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I got a conviction several years ago in Central District of IL. Guy was carrying a Colt Peacemaker, made prior to 1898, and was a convicted felon. USA charged and he was convicted. His defense was it was an antique firearm, BP only, and therefore as a felon he was carrying an exempt firearm. The USA and the fed district judge saw the law differently. The reason is because 18 USC 922 says "any firearm" which includes modern and antique firearms. You have to highlight the "any". That is the distinction.
The reason states include the same statute is because the feds won't always prosecute. So if the feds won't the states can proceed.
ISP2605, I'd love to get my hands on documentation for this if you could at all come up with it or point to it in public records.
Reason I've stuck to my guns here is I had this exact conversation with AUSA and a local prosecutor back in '88 and the concensus was that it would either not get a conviction or get overturned if it was simple possesion. Carrying (open or concealed at that time in TX) or possesion as an aggravating circumstance would provide other avenues for conviction.
Reason I've stuck to my guns here is I had this exact conversation with AUSA and a local prosecutor back in '88 and the concensus was that it would either not get a conviction or get overturned if it was simple possesion. Carrying (open or concealed at that time in TX) or possesion as an aggravating circumstance would provide other avenues for conviction.
The case was in 1985, 86 or could have been as late as 87 and was in the Central District of IL in Springfield. I had the guy with a bit of pot and the loaded gun in the car. The USA's position was the intent of the fed law prohibiting felons from possessing firearms wasn't to allow them to possess a firearm just because it was made prior to 1898 or only used BP. The intent of the fed law was to prohibit felons from possessing any firearm.
There was another case about 7 yrs ago or so one of my Troops took to the USA that involved a felon carrying a NAA .22 that was BP only. The USA filed on that but I don't recall the outcome.
Sounds like you may have had a less than aggressive AUSA.
There was another case about 7 yrs ago or so one of my Troops took to the USA that involved a felon carrying a NAA .22 that was BP only. The USA filed on that but I don't recall the outcome.
Sounds like you may have had a less than aggressive AUSA.
I know you're asking a legal question here, but if I could just interject an opinion without derailing the thread too much.....
When a person charged with a felony has served his/her sentence, they should not bear the title of felon any longer, and all his/her Constitutional rights should be reinstated. If they can't be trusted with their rights, then why let them go to begin with?
When a person charged with a felony has served his/her sentence, they should not bear the title of felon any longer, and all his/her Constitutional rights should be reinstated. If they can't be trusted with their rights, then why let them go to begin with?
I've heard the joke that the law is what the local USAs office, DAs office or city prosecutors office says it is. Like I said, they both agreed if there was ANY other charge they would go after that. It all boiled down to what they thought was tehir best chance at a conviction and what would give the best result. Their interpretation of felon in possesion of BP/Antique was gray at best. Even the ATF says GCA does not apply to BP and Antique guns.
Understood. I would say this discussion has been an excellent example about the law being applied differently in different areas even though it is written the same. I think my stand has always been it was wrong for felon to carry BP but the legal splitting of hairs said it was possible. With your succesful examples I think I am coming over to your side that ANY FIREARM means no exception for BP/antique.
tjhands:
Well this is the sticking point isn't it? Unfortunately with the revolving door policies of our criminal justice system there are a lot of felons on the street that shouldn't be out much less armed. On the flip side, there are a lot of "felons" that are non violent, truly are rehab'd and/or paperwork felons that I am not of the opinion that they should not have firearms rights restored. I think the removal of disabilties program should be refunded since the chances of getting pardoned is far and few between in most places. If the person has served their time, proven they are rehabilitated and reintegrated into society and shown they are no longer a threat to society, there is no reason they should not have a way to get their rights restored. Granted this is basically one of the textbook definitions of reason for a pardon.
We had a state's attorney like that in one county who was really bad at prosecuting cases. Whenever we'd take him a case the very first question he'd ask was "Do you think he'll plead?" If you said "No" then you weren't getting any charges filed that day. He'd fiddle with it until you kept bugging him about filing. If you said "Yes" you could get charges filed before you left his office. He was all about his conviction percentage.
I don't doubt some of the discrepancy in charges being filed has to do with the different gun cultures between TX and IL. Could also be the difference in case load between the USA's offices and the number of AUSAs available.
Doubletaptap
New member
I have a buddy who has a current felony charge and he admitted in court when asked if he posessed any firearms, "I have a .50 caliber Hawken Rifle"
Judge said, "Isn't that a muzzleloader?" Buddy answered,"Yes sir it is". Judge smiled and said,"It's your honor,not sir, and the muzzleloader don't count as a firearm."
Good 'ole Texas!!!
Judge said, "Isn't that a muzzleloader?" Buddy answered,"Yes sir it is". Judge smiled and said,"It's your honor,not sir, and the muzzleloader don't count as a firearm."
Good 'ole Texas!!!
I'm a cop, but I'm politically libertarian. I have no problem with felons not being allowed to possess firearms, but...
...what if it is 12 years since their conviction (or release from prison), they've held a job and gotten into no trouble (beyond a speeding ticket or two)? If someone has really turned their life around should we continue to force them to relinquish their ability to defend themselves via the 2nd amendment for the rest of their lives? Seems to me there should be some sort of litmus test to allow a convicted felon, who by empirical evidence has straightened out, to be returned at least some of the rights that they were stripped of by their conviction.
I realize this would likely only apply to a minority percentage of convicted felons, but I'd hate to see a guy who has "paid his dept to society" and stayed clean continue to be punished the remainder of his life.
...what if it is 12 years since their conviction (or release from prison), they've held a job and gotten into no trouble (beyond a speeding ticket or two)? If someone has really turned their life around should we continue to force them to relinquish their ability to defend themselves via the 2nd amendment for the rest of their lives? Seems to me there should be some sort of litmus test to allow a convicted felon, who by empirical evidence has straightened out, to be returned at least some of the rights that they were stripped of by their conviction.
I realize this would likely only apply to a minority percentage of convicted felons, but I'd hate to see a guy who has "paid his dept to society" and stayed clean continue to be punished the remainder of his life.